A North Carolina State Court of Appeals had affirmed the ruling of the Full Commission of the North Carolina Industrial Commission, which found that a former “tire carrier” for a NASCAR team was not entitled to disability payments because of an injury he suffered, while employed as a tire carrier.
The appeals court concurred that the “reduced wages were not caused by his injury, but by his … relatively inferior ability as a tire carrier, the reduction in available positions, and the increased requirements of those positions.”
The plaintiff was Matthew Donley, who started working in 2017 as a tire carrier for Chip Ganassi, earning a yearly salary of $135,000 plus bonuses. As a tire carrier, Donley was required to carry a 65-pound tire during pit stops and was occasionally required to carry two tires at once. As part of his employment, he was also required to participate in team workouts and strength training, which included lifting more than 70 pounds at a time.
At the end of the 2017 NASCAR season, the employer learned that a new rule would halve the number of tire carriers per team in 2018, which would thereafter require each tire carrier to carry 130 pounds in tires during every pit stop. Because the team would be able to retain only four of its eight tire carriers, the employer’s pit crew coach assessed the tire carriers’ performance under the more physically demanding requirements of their revised role during practices and training from November 2017 through February 2018. At the start of the 2018 season, Donley’s job title was changed to “backup tire carrier.” he did not travel to or participate in any NASCAR races during the 2018 season, and the employer’s pit crew coach did not consider him as one of the team’s top four carriers under the new format.
On January 31, 2018, Donley injured his back during a team workout. He was evaluated by a physician on February 7, 2018 and received pain medication and a Toradol injection. Donley continued to practice with the team as a backup tire carrier until he and the other backup tire carriers were terminated on April 10, 2018. At the time of his termination, Donley did not have any work restrictions relating to his back injury.
Following his termination, Donley tried without success to gain employment with other NASCAR teams. He attended real estate school, obtained his real estate license in July 2018, and became a licensed real estate broker in 2019. He did not look for any other non-racing jobs.
In August 2018, Donley was referred to a spine specialist, who recommended treatment including a steroid injection and limited Plaintiff to lifting no more than ten pounds. He filed for and began receiving temporary total disability benefits in September 2018. His doctor continued to write him out of work through December 2018.
In March 2019, Donley underwent lumbar surgery. He reached maximum medical improvement in July 2019, and his doctor assessed him with a 10 percent permanent partial impairment and recommended a 70-pound lifting restriction. This restriction precludes Donley from working as a NASCAR tire carrier, as the position now requires the carrying of two 65-pound tires at a time.
When Donley began working as a real estate broker in August 2019 the employer subsequently ceased paying disability benefits. On October 3, 2019, Donley filed an application for reinstatement of compensation with the Commission. His case was heard by a Special Deputy Commissioner, who determined that Donley had failed to show his loss in earnings was related to his admittedly compensable work injury. He also sought an award of disability compensation, which was likewise denied. The Full Commission entered its opinion and award on May 18, 2021, denying his claim for disability compensation and affirming the denial of Donley’s application to reinstate disability payments. The plaintiff appeals.
In the appeal, Donley challenged the Commission’s finding that he “had not provided credible evidence that he is incapable of earning the same wages as a result of his injury.”
The appeals court noted in its analysis that “to prove compensable disability an injured employee must present evidence showing three essential elements: (1) he is incapable after his injury of earning the same wages he had earned before the injury in the same employment; (2) he is incapable of earning the same wages he had earned before his injury in any other employment; and (3) the incapacity to earn was caused by the workplace injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982). An employee can meet this burden by a variety of methods:
(1) the production of medical evidence that he is physically or mentally, as a consequence of the work-related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4 ) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Russell v. Lowes Prod. Distrib., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993)
Donley introduced evidence that his earnings as a real estate broker were less than what he earned as a NASCAR tire carrier. However, the Commission found that Donley failed to prove that his reduced earning capacity was caused by his workplace injury.
The Commission found that Donley “has not provided credible evidence that he is incapable of earning the same wages he had earned prior to the injury in the same or in any other employment as a result of the work-related injury.” Donley argues that this finding is not supported by competent evidence and conflicts with the Commission’s other, unchallenged findings of fact. “We disagree,” held the appeals court. “The evidence and the Commission’s other findings of facts are consistent with this finding and support the Commission’s conclusion that Donley’s injury was not the cause of his reduced earnings.
“The Commission found that NASCAR imposed a new rule that forced the employer to cut its team of tire carriers in half, terminating four employees and doubling the physical demand of the remaining employees’ jobs. The employer evaluated its carriers in November 2017, December 2017, January 2018, and leading up to the February Daytona race. Donley was not placed under a work restriction during the team’s evaluation of the carriers and was in the bottom half of the team before his injury occurred. The Commission noted that ‘tire carriers are getting bigger,’ and that one of the employer’s current tire carriers is a former NFL linebacker. Donley was not selected to work any NASCAR races in 2018, though he did work as a pit crew member in lower-tier races. The employer continued to employ Donley for two months following his injury, during which Donley participated in practices and workouts, and terminated him and three other tire carriers when the new rule was imposed. Donley was not under a work restriction at the time of his termination. Once the new rule went into effect, the total number of available tire carrier positions within NASCAR was reduced, and the job that Donley was terminated from effectively no longer existed as the new definition of tire carrier required that two tires be carried at a time.
Ultimately, the Commission’s unchallenged findings of fact show that Donley was not a competitive candidate for the tire carrier position in light of the new rule promulgated by NASCAR, even before his injury and work restrictions, and support its conclusion that ‘Donley failed to show that his reduced earnings were because of the work-related injury.’
“Donley argues that the fact that he got a new job as a real estate agent, earning less than he did as a tire carrier, shifts the burden to Employer to show that he could have obtained a job paying the same as his prior earnings. But getting another job does not shift the burden to Employer regarding the third Hilliard prong, causation: Donley still bears the burden of showing ‘but for the work-related injury . . . [the plaintiff] would not have . . . suffered wage loss.’ Medlin v. Weaver Cooke Constr., LLC, 229 N.C. App. 393, 396, 748 S.E.2d 343, 346 (2013) (quoting Fletcher v. Dana Corp., 119 N.C. App. 491, 497, 459 S.E.2d 31, 35 (1995)).
“We acknowledge that Plaintiff’s termination prior to being assigned work restrictions does not necessarily preclude a finding that his reduced earnings were caused by his work-related injury. In Britt, the plaintiff was injured at work after being notified that he would be laid off at the end of that month. 185 N.C. App. at 679, 648 S.E.2d at 919. Although his injury may not have caused his termination and immediate wage loss, we held that this did not preclude a finding of disability ‘if, because of Plaintiff’s injury, he was incapable of obtaining a job in the competitive labor market.’ Id. at 683, 648 S.E.2d at 921. Unlike in Britt, however, the Commission found in this case that Plaintiff’s reduced wages were not caused by his injury, but by his pre-injury relatively inferior ability as a tire carrier, the reduction in available positions, and the increased requirements of those positions. As this finding was supported by competent evidence, we are bound by it.” Chaisson, 195 N.C. App. at 470, 673 S.E.2d at 156.
Matthew Donley v. Chip Ganassi Racing, et al.; Ct. App. N.C.; No. COA 21-447; 5/17/22
Attorneys of Record: Campbell & Associates, by Bradley H. Smith, for Plaintiff-Appellant. Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones and Ryan W. Keevan, for Defendants-Appellees.
